Opinion
Case No. 04-23175-CIV-HUCK/SIMONTON.
June 23, 2005
The Honorable Paul C. Huck, United States District Judge, David P. Reiner, II, Esq., Reiner Reiner, Miami, FL, (Counsel for Plaintiffs).
Pamela S. Tonglao, Esq., United States Department of Justice, Environmental Defense Section, Washington, DC, (Counsel for Federal Defendants).
Mark A. Brown, Esq., United States Department of Justice, Wildlife Marine Resources Section, Environment Natural Resources Division, Washington, DC, (Counsel for Federal Defendants).
Thomas K. Snodgrass, Esq., United States Department of Justice, Natural Resources Section, Environment Natural Resources Division Washington, DC, (Counsel for Federal Defendants).
Daniel D. Richardson, Esq., Lewis, Longman Walker, P.A., Jacksonville, FL, (Counsel for Defendant-Intervenor FDOT).
Kenneth G. Spillias, Esq., Lewis, Longman Walker, P.A., West Palm Beach, FL, (Counsel for Defendant-Intervenor FDOT).
REPORT AND RECOMMENDATION RE: DEFENDANT-INTERVENOR'S MOTION FOR COSTS
Presently pending before the Court is Defendant-Intervenor, The Florida Department of Transportation's (hereafter FDOT), Motion For Costs (DE # 104, filed 5/10/05). This motion is referred to the undersigned Magistrate Judge (DE # 102). This motion is fully briefed (DE ## 103, 105). For the reasons stated below, the undersigned recommends that the motion be granted in part.
I. Background
On December 20, 2004, Plaintiffs filed their initial Complaint asking the District Court to enjoin permanently the United States from proceeding with a highway project in the Florida Keys. On March 15, 2005, Plaintiffs supplemented their Complaint. Plaintiffs challenged the decision-making processes and ultimate decisions which led to the approval of the highway project by federal agencies. On February 11, 2005, the District Court granted FDOT, as an interested party, leave to intervene in support of the highway project. On April 1, 2005, after a non jury trial, the Court concluded that Plaintiffs had failed to prove any of their claims against Defendants, denied relief to Plaintiffs. The District Court then entered final judgment against Plaintiffs and in favor of Defendants (DE ## 95, 96).
All facts are taken from the District Court's April 8, 2005 Order (DE # 96).
The instant motion followed.
II. The Instant Motion
FDOT, as a prevailing party, moves for $32,113.08 in costs pursuant to 28 U.S.C. § 1920 and Local Rule 7.3. Specifically, FDOT requests $25,327.90 for the costs of reproducing its administrative record, and $3,841.07 for copying charges for a condensed version of the administrative record on DVD which was provided to the Court and the parties for use during trial. FDOT also requests $2,864.11 for deposition transcripts. Finally, FDOT requests $80.00 for the witness fees for two expert witnesses retained by FDOT in anticipation of their use as rebuttal witnesses (DE # 104).
III. Analysis A. FDOT Is Entitled To An Award of Costs
F.R.C.P. Rule 54(d)(1) allows costs to a prevailing party as a matter of course. While FDOT intervened in this action, it should be treated as any other prevailing or non-prevailing party, as the case may be. Smith v. Board of School Com'rs of Mobile County, 119 F.R.D. 440, 443 (S.D. Ala. 1988). It is clear that FDOT is a prevailing party in this action, and as such, is entitled to an award of costs. Id. at 442-43.
The Eleventh Circuit has made it clear that costs may be denied to a prevailing party only to penalize the prevailing party for some misconduct on its part during the litigation. See Scelta v. Delicatessen Support Services, Inc., 203 F.Supp.2d 1328, 1339 (M.D. Fla. 2002), citing Chapman v. Al Transport, 229 F.3d 1012, 1039 (11th Cir. 2000) (en banc); accord Gilchrist v. Bolger, 733 F.2d 1551, 1556-57 (11th Cir. 1984). Plaintiffs do not allege, and the undersigned does not find, any misconduct by FDOT during this litigation, or any other good reason to deny costs.
The cases upon which Plaintiffs rely to support their position are unavailing in that they: do not construe 28 U.S.C. § 1920, see Kell v. Trenchard, 146 F. 245 (4th Cir. 1906) (In a pre-28 U.S.C. § 1920 case, court held in dictum that a court has the discretion to apportion taxable costs with reference to the special circumstances of each case); do not support Plaintiffs' proposition, see A-Cal Copiers, Inc. v. North American Van Lines, Inc., 180 F.R.D. 183, 191 (D. Mass. 1998) (non-prevailing party may show that an award of costs is inequitable if the requested expenses were either unreasonable or unnecessary, the prevailing party engaged in some misconduct, or the motion for costs under 28 U.S.C. § 1920 is subject to a procedural defect); or conflict with later, binding authority from the Eleventh Circuit, see Dasher v. Mutual Life Ins. Co. of New York, 78 F.R.D. 142, 144 (S.D. Ga. 1978) (court found, in passing, that it had broad discretion to allow or disallow costs enumerated in 28 U.S.C. § 1920) (DE # 103 at 4-5).
Finally, Plaintiffs contend that awarding costs to the FDOT would be penal, and would have a chilling effect on entities who wish, in good faith, to bring similar litigation. However, the taxation of costs is not penal, but merely represents the fair price of bringing unsuccessful litigation. See Baez v. United States Department of Justice, 684 F.2d 999, 1003 (D.C. Cir. 1982) (en banc).
B. The Amount of Costs Awarded
Title 28 U.S.C. § 1920 provides as follows:
A judge or clerk of any court of the United States may tax as costs the following:
1. Fees of the clerk and marshal;
2. Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;
3. Fees and disbursements for printing and witnesses;
4. Fees for exemplification and copies of papers necessarily obtained for use in the case;
5. Docket fees under section 1923 of this title
6. Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.
1. Fees Relating To Depositions
FDOT, pursuant to 28 U.S.C. § 1920(2), requests $2,864.11 in court reporter fees for the deposition transcripts of six prospective witnesses. Plaintiffs object to taxing these costs because: 1) Plaintiffs brought no claims against FDOT; 2) Plaintiffs took the depositions only to secure discovery of witnesses identified as probable trial witnesses in opposition to Plaintiffs' preliminary injunction motion; and 3) after the preliminary injunction motion was converted to a final trial on the administrative record with the consent of all parties, it was agreed and understood that the District Court could not longer rely on witness testimony (DE # 103 at 2-3, 5-6).
The undersigned recommends that the FDOT be awarded the requested $2,864.11 in court reporter fees for deposition transcripts. These depositions were noticed by Plaintiffs and by FDOT. Moreover, Plaintiffs filed these deposition transcripts with the Court in support of their motion for preliminary injunction. See DE ## 57-61. Thus, FDOT has shown that the depositions in question appeared to be reasonably necessary at the time they were taken, reasonably believing that these depositions would be offered at the hearing on Plaintiff's preliminary injunction motion. See DeSisto College, Inc. v. Town of Howey-In-The-Hills, 718 F. Supp. 906, 912 (M.D. Fla. 1989), aff'd, 914 F.2d 267 (11th Cir. 1990).
2. Photocopying Costs
FDOT requests a total of $29,168.97 for photocopying costs. This breaks down to $25,177.90 for creating a DVD of FDOT's administrative record, $150.00 for reproducing six copies of the DVD of FDOT's administrative record, and $3,841.07 for copies of a condensed version of FDOT's administrative record, which was provided to the Court and to the parties for use during the trial.
28 U.S.C. § 1920(4) provides for the taxation of costs for fees for exemplifications and copies of papers necessarily obtained for use in the case. Photocopies attributable to discovery, copies of pleadings, correspondence, documents tendered to the opposing party, copies of exhibits, and documents prepared for the Court's consideration are all recoverable. DeSisto College, Inc. v. Town of Howey-In-The-Hills, 718 F.Supp. at 913. Copies obtained only for the convenience of counsel, including extra copies of filed papers and correspondence, are not recoverable. Id. at 913.
a. The Costs Involved In Submitting FDOT's Administrative Record Are Taxable
The undersigned finds that it is undisputed that reproduction of FDOT's administrative record was necessary in this case. The District Court allowed FDOT to intervene as an interested party (DE # 31), and to subsequently file its administrative record (DE # 46). The District Court referred extensively to FDOT's administrative record in its final Order (DE # 96). The FDOT's administrative record was more than 100,000 pages, see Ex. A. to DE # 104, and was submitted to the Court in DVD format, with copies of the DVD provided to counsel (DE # 104 at 5).
The undersigned does not credit Plaintiffs' argument that costs relating to the production of FDOT's administrative record are not taxable because the administrative record in this case was an exhibit and 28 U.S.C. § 1920 does not authorize taxing the costs of exhibits (DE # 103 at 2, 4). Plaintiffs have not provided any authority to support their position.
The undersigned is aware that the Eleventh Circuit has ruled that 28 U.S.C. § 1920 does not authorize taxing the costs of exhibits. See Arcadian Fertilizer, L.P. v. MPW Industrial Services, Inc., 249 F.3d 1293, 1296-97 (11th Cir. 2001), citing EEOC v. WO, Inc., 213 F. 3d 600, 623 (11th Cir. 2000). However, in this case, FDOT is not seeking to tax the cost of creating its administrative record. Here, the District Court allowed FDOT and to file its administrative record, which consisted of more than 100,000 documents. FDOT did so, and also, pursuant to the Local Rules, provided a copy each to Plaintiffs and to the United States. Thus, as FDOT was required to provide to the Court and counsel a total of more than 300,000 documents, FDOT is entitled, under § 1920(4), to tax the reasonable costs of creating the DVD of containing its administrative record, i.e. $25,177.90.
The undersigned notes that had FDOT not scanned its administrative record in DVD format, and made paper copies of its administrative record at $0.10 per page, it would have been entitled to an award of more than $30,000.00 for copying its administrative record.
FDOT also asks for an award of $150.00 for creating six DVD copies of its administrative record, which works out to $25.00 for each individual DVD of FDOT's administrative record. The undersigned recommends that FDOT be awarded $75.00 for the three DVDs provided to the Court, to the United States and to Plaintiffs. FDOT has not shown that the other three DVD's were necessary for the litigation of this case.
Therefore, the undersigned recommends that FDOT be awarded $25,252.90 for costs relating to the copying of its administrative record.
b. FDOT Has Not Shown That The Costs Involved In Creating Excerpts of Its Administrative Record Are Taxable
FDOT requests $3,841.07 in copying charges for what it describes as "a condensed version of the Administrative Record provided to the court and the parties for use during the trial" (DE # 104 at 3). FDOT contends that the partial Administrative Record was necessary for use in the case, was in fact used in the case, and was relied on heavily due to the voluminous total record (DE # 104 at 5). FDOT has provided a summary of its copying invoices (Ex. A to DE # 104). Plaintiffs respond that FDOT's request for expenses relating to copying or scanning of these documents is not sufficiently itemized to allow the Court to segregate potentially allowable charges from not allowable charges (DE # 103 at 3). FDOT replies by referring to the invoices attached to its motion (DE # 105 at 4, Ex. A to DE # 104).
The undersigned recommends that FDOT's request for $3,841.07 in copying charges for a condensed version of its administrative record be denied. The undersigned finds merit in Plaintiffs' contention that FDOT's request for expenses related to copying these documents is not sufficiently supported to allow the Court to determine what copying charges should be allowed.
The undersigned has reviewed the summaries of invoices of copying charges which are attached to FDOT's motion. FDOT has provided summaries of invoices as follows: 1) Defendant-Intervenor's record (Invoice # 5745, 3/16/05, 8 copies at $73.27 per unit, total requested $732.70); 2) copies of Plaintiffs' record (Invoice # 5768, 3/21/05, 3 copies at $193.13 per unit, total requested $582.38); 3) Defendant-Intervenors Additions to the Record for use in Court (Invoice 5789, 3/26/05, 10 copies at $44.72 per unit, total requested $447.20); and 4) Defendant-Intervenors Additions to the Record for use in Court (Invoice, 5795, 3/28/05, 10 copies at $31.20 per unit, total requested $312.00). FDOT has also provided copies of the copy service's invoices: 1) Invoice # 5745, 3/16/05 $1,172.35; 2) Invoice # 5768, 3/21/05 $582.38; 3) Invoice # 5789 3/26/05 $1,073.37; and 4) Invoice # 5795, 3/28/05, $491.98.
FDOT's submission is insufficient for a number of reasons. Initially, the amounts listed in the summaries of three of the four invoices do not match the actual amounts invoiced for copying. Next, FDOT has not provided sufficient information to show that these copies were actually necessary to the case and were not made merely for the convenience of counsel. For example, FDOT requests costs for making copies of Plaintiffs' record, but does not show how this was necessary to the case. FDOT also asks for the cost of providing two copies of Plaintiffs' record to counsel for the United States and one copy to an unnamed FDOT corporate witness, but does not state why this is necessary.
Furthermore, as to further copies of FDOT's administrative records, the undersigned has recommended that FDOT receive costs of more than $25,000.00 for putting its entire administrative record on DVD and providing a copy of the DVD to the Court, to the United States and to Plaintiffs. FDOT has not made it clear why any other copies of the administrative record were necessary to the litigation and why costs should be taxed for providing copies to any entity other than the Court, the United States and Plaintiffs. FDOT has also not shown how these documents were necessary to the litigation of the case, and it is not apparent.
Therefore, it is recommended that FDOT's request for $3,841.07 in copying charges be denied.
3. Witness Fees
FDOT requests $80.00 in witness fees related to two expert witnesses, Dr. Jeffery Marcus and Michael Ciscar, who were deposed by Plaintiffs on February 24, 2005 (DE # 104 at 4-5). Plaintiffs object to these fees on the grounds that 1) the expert witnesses were parties to the case; 2) the experts are employees of consulting firms engaged by FDOT for work on the project challenged in this litigation; and 3) the request is not properly presented, supported or documented (DE # 103 at 6). FDOT replied that: 1) the expert witnesses were each paid more than $40.00 per day; 2) the expert witnesses are not party witnesses, as they are not employed by FDOT, but are employees of consulting firms with expert knowledge of the contested facts; and 3) it is entitled to the $40.00 per day witness fee for each witness for one day (DE # 105 at 2-3, 5).
The undersigned recommends that FDOT's request for $80.00 in witness fees be denied. Plaintiffs contended that the request was not properly supported or documented. FDOT has provided no documentation, either in its initial motion or in its reply, that it paid witnesses Jeffery Marcus and Michael Ciscar any witness fees, but relies only on its unsworn assertion contained in its motion. See Johnson v. Mortham, 173 F.R.D. 313, 318-21 (N.D. Fla. 1997) (court denied all undocumented costs, even thought costs would have been taxable if properly documented); Fulton Federal Sav. Loan v. American Ins. Co., 143 F.R.D. 292, 300 (N.D. Ga. 1991) (where a movant fails to respond to an objection to a requested cost item by coming forward with evidence showing that the item at issue is taxable, the court may disallow the item). Therefore, the undersigned recommends that FDOT's request for $80.00 in witness fees be disallowed.
For the reasons stated above, it is hereby
RECOMMENDED that Defendant-Intervenor, The Florida Department of Transportation's, Motion For Costs (DE # 104, filed 5/10/05), be GRANTED in part, and that FDOT be awarded $28,117.01, consisting of $25,252.90 for copying FDOT's administrative record and $2,864.11 for deposition transcripts.
The parties will have ten days from the date of service of this Order within which to file written objections, if any, for consideration by the Honorable Paul C. Huck, United States District Judge. Failure to file objections timely shall bar the parties from attacking on appeal any factual findings contained herein. LoConte v. Dugger, 847 F.2d 745 (11th Cir.), cert. denied, 488 U.S. 958 (1988); RTC v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993).